December 13, 2010

Truth and fiction about property rights in Texas

By Truth and fiction about property rights in Texas

Author: Timothy Sandefur

PLF’s recent victory for property rights in the Texas Supreme Court has outraged bureaucrats at the state’s General Land Office, and particularly Commissioner Jerry Patterson. First, Patterson blasted PLF for defending the rights of property owners in a statement that misrepresented what the decision actually said. Then, when PLF principal attorney J. David Breemer answered Patterson’s charges with an article in the Galveston Daily News, Patterson reiterated his claims in his own Daily News editorial. Now, Breemer has answered Patterson’s claims in a new article that reminds Mr. Patterson that the U.S. Constitution does, in fact, apply on the coast.

After publicizing a beach renourishment crisis, which it blamed on others, the GLO rejected a quick and easy solution—an easement giving the public use of any deposited sand. It is demanding property owners agree to a rolling easement, one that not only covers the area where fresh sand would be placed, but any other private area that becomes sandy in the future because of storms.

The GLO’s unyielding rejection of voluntary static easements makes it appear more concerned with retaining its power to acquire property (and potentially remove homes) after storms blow away the grass than with solving the re-nourishment issue.

Property owners—whether from Texas or California—know if the goal is to ensure that any sand placed in front of homes can be used by the public, the GLO would accept static easements that accomplish this very objective.

Since it won’t, the GLO’s victim game falls flat, and its claim to have done so much for property owners rings hollow….

It’s time for the GLO to look in the mirror. “Mother Nature” is not responsible for transferring private dry land into GLO control under the “rolling easement” theory. Nature can denude private land of beach grass, but it does not decide that this instantly makes the land public. The state does.

The GLO still does not recognize that if its public access mission is more difficult now that property owners have firm rights, this is a consequence of the agency’s refusal to deal with public access to receding beaches long ago in a lawful manner, perhaps by proving up easements or by buying cheaper undeveloped land for beach parks….

No state can enforce a law or a state constitutional provision—no matter how popular—if it infringes the Constitution. GLO officials have federal rights—including to free speech and to gun ownership—that the state cannot take simply because many think it is a good idea. Property owners have a federal right to their land that the GLO cannot take simply because it is popular to do so. No one is against the Open Beaches Act; the problem is the state’s unconstitutional “rolling easement” interpretation.

Read the rest here.

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